Williamson Bros. v. Daniel

• Decision Date: 14 August 1937
• Parties: WILLIAMSON BROS. v. DANIEL.
• Court: Tennessee Court of Appeals

110 S.W.2d 1028

21 Tenn.App. 346

WILLIAMSON BROS. v. DANIEL.

Court of Appeals of Tennessee, Middle Section.

August 14, 1937

Certiorari Denied by Supreme Court December 17, 1937.

Appeal in Error from Circuit Court, Putnam County; O. K. Holladay Judge.

Action by Williamson Brothers against Mrs. F. M. Daniel. Judgment for plaintiff, and defendant appeals in error.

Affirmed.

Under conditional sales contract, extension of time for payment does not amount to waiver of reservation of title.

Solon Fitzpatrick, of Carthage, for Mrs. Daniel.

E. A Langford and A. B. McKay, both of Cookeville, for Williamson Bros.

FAW Presiding Judge.

Mrs. F M. Daniel is the plaintiff in error and, according to the usual practice, the case should, on appeal in error, be styled Mrs. F. M. Daniel v. Williamson Bros.; but it is entered on the dockets of this court as Williamson Bros. v. Mrs. F. M. Daniel, as it appeared on the docket of the circuit court, and, to avoid confusion in its identification we have so styled it in the caption hereof.

This is an action of replevin to obtain possession of a farm wagon, brought before a justice of the peace of Putnam county by Williamson Bros. (a partnership composed of W. C. Williamson, H. S. Williamson, and L. C. Williamson) against Mrs. F. M. Daniel. The justice of the peace adjudged that the wagon "be restored to the plaintiff," and the defendant, Mrs. Daniel, prayed and perfected an appeal to the circuit court of Putnam county, where the case was tried before the judge, without a jury, "upon the replevin warrant, the written plea of the defendant, and upon proof offered before the Court"; whereupon the court found and adjudged that the plaintiff, Williamson Bros., is entitled to the possession of the wagon replevined, and he adjudged that plaintiff recover of defendant Mrs. Daniel the costs of the cause, for which execution was awarded.

A motion for a new trial filed on behalf of Mrs. Daniel was overruled, and she thereupon prayed, obtained, and perfected an appeal in the nature of a writ of error to this court, and has assigned errors here.

For convenience, the parties will be designated herein as plaintiff and defendant, respectively, according to their position on the record in the trial courts.

The defendant's assignments of error in this court are seven in number, but in the brief of her counsel it is said: "There is not any dispute as to the facts in this case. There is only one legal question for this Court to decide, that is, can a conditional sales contract be renewed subsequent to the original sale so as to prevent the statute of limitation barring right of action." And, in their reply brief, plaintiff's counsel say that defendant's counsel "is correct" in his statement that the question above quoted is the only question for this court to decide.

The written plea filed by defendant in the court of the justice of the peace, and upon which she relied in the circuit court, is as follows: "The defendant for plea says, that she does not illegally detain said wagon from the plaintiff, and that the plaintiff does not have any cause of action to recover said wagon but if plaintiff did have any cause of action the Statute limitation of six and ten years have run against said cause of action, and she therefore pleads the six and ten year Statute of Limitation as set out in section 8600 and 8601 in the Code of Tennessee 1932, and prays that this suit be dismissed with her costs damage."

The material facts of this case, as disclosed by the record, are substantially as follows:

The defendant is the widow of F. M. Daniel who died intestate in Putnam county on May 27, 1936, and who left no minor children surviving him.

On August 24, 1923, plaintiff Williamson Bros. sold to F. M. Daniel the wagon replevined in this case, at and for the price of $75, and at the time of the sale F. M. Daniel executed to Williamson Bros. a promissory note of that date, due one day after date, for $75, which note contained a recital that it was given "For one Newton Farm Wagon. We retain right and title of same until paid for in full."

F. M. Daniel made partial payments on said note, and on August 14, 1929, there was a balance of principal and interest due on same of $24.85, for which sum he (F. M. Daniel) executed a renewal note of that date, due 90 days after its date, to Williamson Bros., and which renewal note contained the following recital, to wit: "Balance on Wagon right and title remain in us until paid in full."

The aforesaid note of August 14, 1929, with interest, was renewed on October 31, 1935, by the execution of a note of that date, due 90 days after its date, to Williamson Bros. for $30.12, which contained these words: "Balance on Emerson & Buntingham farm wagon & gear brake and title remains in Williamson Brothers until paid for in full."

The undisputed proof shows that the wagon in controversy may be appropriately described as either a "Newton farm wagon" or an "Emerson & Buntingham farm wagon"; and the identity of the wagon replevined in this case as the same wagon sold by Williamson Bros. to F. M. Daniel on August 24, 1923, and intended to be described in each of the aforesaid three notes, is unquestioned on the record. (We think it probable that the word "Buntingham" is a typographical error, and that Brantingham was intended.)

Although the language of the notes of August 24, 1923, and August 14, 1929, taken literally, imports that title to the wagon was retained by the maker of the notes, F. M. Daniel, such construction would be inconsistent with the nature of the transaction, and it is conceded, at least tacitly, that the parties and their counsel have at all times construed said notes as purporting to retain title to the wagon in Williamson Bros. Evidently the case was tried below upon the theory just stated, and it will be adhered to on appeal. Nolen v. Family Loan Co., 19 Tenn.App. 108, 113, 83 S.W.2d 559; 4 Corpus Juris Secundum, page 465, § 241.

Moreover, the word "remains," as used in the clause "title remains in Williamson Bros. until paid for in full," in the note of October 31, 1935 (the last of the three notes), evidences an understanding on the part of F. M. Daniel that the title to the wagon had been theretofore retained by Williamson Bros., and also his intention that it should so remain until the balance on his debt for the wagon should be paid in full.

We are not aware of any case, reported or unreported, which presented, on parallel facts, the precise question for decision in the instant case; but we think there are certain established principles that will lead us to a correct conclusion.

The retained title in a conditional sale of personal property is but a form of lien to secure the purchase price. Marion Mfg. Co. v. Buchanan, 118 Tenn. 238, 251, 99 S.W. 984, 8 L.R.A. (N.S.) 590, 12 Ann. Cas. 707; McDonald Automobile Co. v. Bicknell, 129 Tenn. 493, 496, 167 S.W. 108, Ann.Cas.1916A, 265; Blackwood Tire & Vulcanizing Co. v. Auto Storage Co., 133 Tenn. 515, 521, 182 S.W. 576, L.R.A.1916E, 254, Ann.Cas.1917C, 1168; Jones Auto Co. v. Carr & Co., 4 Tenn.App. 443, 447; Brasfield Hardware Co. v. Harris, 5 Tenn.App. 652, 656, 657.

Although a sale of personal property with title retained by the seller to secure the purchase price is not a mortgage (Southern Ice & Coal Co. v. Alley, 127 Tenn. 173, 178, 154 S.W. 536), it is, in important respects, governed by the same principles that control a mortgage. Blackwood Tire & Vulcanizing Co. v. Auto Storage Co., supra, 133 Tenn. 515, at page 521, 182 S.W. 576, L.R.A.1916E, 254, Ann.Cas.1917C, 1168.

And the rules of law governing express vendor's liens on real estate are in some instances applicable to conditional sales of personal property. McDonald Automobile Co. v. Bicknell, supra, 129 Tenn. 493, at page 496, 167 S.W. 108, Ann.Cas.1916A, 265.

Extension of time for payment (55 C.J. page 1229, § 1224) or the taking of a renewal note in lieu of the note evidencing the debt for the purchase price of the goods sold does not amount to a waiver of the reservation of title, especially where the renewal note contains the same reservation of title. 55 C.J. page 1225, § 1216.

The mere taking of a new note, worded and conditioned like the original, and merely evidencing the same transaction, is no evidence of a waiver and surrender of the retained title. Brasfield Hardware Co. v. Harris, supra, 5 Tenn.App. 652, at page 656; Freed Furniture & Carpet Co. v. Sorensen, 28 Utah 419, 79 P. 564, 107 Am.St. Rep. 731, 3 Ann.Cas. 634, 639; Hamblen Motor Co. v. Miller & Harle, 150 Tenn. 602, 606, 266 S.W. 99.

"Where the security for a debt is a lien on property, real or personal, the lien is not...